HUBBELL v. ZATECKY
ORDER DIRECTING SUPPLEMENTAL BRIEFING - Mr. Hubbell shall have through October 14, 2022, in which to supplement his motion. The respondent shall have 21 days to respond and Mr. Hubbell 14 days to reply. (SEE ORDER.) Signed by Judge James Patrick Hanlon on 9/16/2022.(TPS)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JASON DEAN HUBBELL,
DENNIS REAGLE, 1
ORDER DIRECTING SUPPLEMENTAL BRIEFING
Jason Dean Hubbell's amended petition for writ of habeas corpus challenges his conviction
for the murder of Sharon Myers. He argues that his trial counsel failed to investigate, and the State
suppressed, evidence that Michael Dean Overstreet was responsible for Ms. Myers' death. Dkt. 48.
Mr. Overstreet was convicted of abducting and killing Kelly Eckart. Overstreet v. State, 783
N.E.2d 1140 (Ind. 2003). In 1997, both women were abducted from their workplace and found
strangled with their own clothing in or near Atterbury Fish and Wildlife Area.
Mr. Hubbell has moved for leave to conduct discovery by serving non-party subpoenas on
five Indiana agencies. Rule 6(a) of the Rules Governing § 2254 Cases allows habeas corpus
petitioners to conduct civil discovery "if, and to the extent that, the judge in the exercise of his
discretion and for good cause shown grants leave to do so, but not otherwise." See Bracy v.
Bramley, 520 U.S. 899, 904 (1997) (A habeas petitioner, unlike the usual civil litigant in federal
court, is not entitled to discovery as a matter of ordinary course). In order to be entitled to
discovery, a petitioner must make specific factual allegations that demonstrate that there is good
Because Dennis Reagle is the current Warden of Pendleton Correctional Facility, the clerk is directed to
update the docket to reflect that Warden Reagle is the respondent.
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reason to believe that the petitioner may, through discovery, be able to garner sufficient evidence
to entitle him to relief. See id. at 908-09.
Mr. Hubbell argues that he has uncovered evidence that was suppressed by the State,
including statements made to police by Mr. Overstreet's wife that she believed her husband was
responsible for Ms. Myers' murder because, on the day of Ms. Myers' abduction, he borrowed the
same van he used in Ms. Eckart's abduction and returned home with blood on his clothing. Dkt. 49
at 3. He also includes police statements from two witnesses who told police Mr. Overstreet had
made references to Ms. Myers' abduction. The Court finds that he has shown good cause for
discovery, as required by Rule 6(a).
The respondent argues that Mr. Hubbell has not met the requirements of 28 U.S.C.
§ 2254(e)(2) to expand the record. Dkt. 50. Mr. Hubbell has not yet moved to expand the record,
but that appears to be the next step if discovery is fruitful.
Recently, the Supreme Court addressed the question of whether a petitioner must
demonstrate that potential evidence would be admissible before a court can authorize him to pursue
such evidence. Shoop v. Twyford, 142 S. Ct. 2037, 2045 (2022). Although in Shoop the Court
reached this question in the context of transporting a prisoner under the All Writs Act for
psychological testing, it stated broadly that "[a] federal court may never needlessly prolong a
habeas case, particularly given the essential need to promote the finality of state convictions, so a
court must, before facilitating the development of new evidence, determine that it could be legally
considered in the prisoner's case." Id. (cleaned up).
Whether the evidence sought by Mr. Hubbell could be legally considered is a complicated
question. First, the Court would need to determine whether he failed to develop the record in state
court. If he did, then he must meet the stringent requirements of 28 U.S.C. § 2254(e)(2). The parties
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did not fully address this question in their briefing. The respondent notes in his amended return to
the show cause order that Mr. Hubbell sought to obtain some of his requested discovery in state
post-conviction proceedings. Dkt. 51 at 11. If the state court denied his requests, then he may not
be at fault for failing to develop that portion of the record, and therefore would not need to meet
§ 2254(e)(2) for those requests.
For these reasons the Court provides the parties an opportunity to provide supplemental
briefing on the interplay between Rule 6(a) of the Rules Governing § 2254 Cases, 28 U.S.C.
§ 2254(e)(2), and recent Supreme Court rulings on expanding the record in federal habeas cases.
Briefing should address whether Mr. Hubbell must satisfy § 2254(e)(2) in order to conduct
discovery, and (assuming that he must for some or all of his requests) how he does or does not
meet the statute's requirements to expand the record. Mr. Hubbell shall have through October
14, 2022, in which to supplement his motion. The respondent shall have 21 days to respond and
Mr. Hubbell 14 days to reply.
Jesse R. Drum
INDIANA ATTORNEY GENERAL
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